|Violent Crime Reduction Bill - continued||House of Commons|
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Clause 32: Supplying imitation firearms to minors
189. This clause makes it an offence to sell an imitation firearm to a person under the age of 18, or for a person under 18 to purchase one. The definition of "imitation firearm" for the purposes of this clause is that used in the Firearms Act 1968, namely any thing which has the appearance of being a firearm whether or not it is capable of discharging any shot, bullet or other missile.
190. Subsection (1) inserts a new section 24A into the Firearms Act 1968 which contains the new offences. In relation to the offence of selling an imitation firearm to someone under 18, it is a defence to show that the vendor had reasonable grounds for believing that the purchaser was 18 or over.
191. Subsection (2) makes the offences summary offences with a maximum penalty of 51 weeks imprisonment or a £5,000 fine, or both. Subsection (3) sets the maximum term of imprisonment to 6 months for offences committed before the commencement of the sentencing provisions in section 281(5) of the Criminal Justice Act 2003.
Clause 33: Increase of maximum sentence for possessing an imitation firearm
192. This clause increases to from 6 months to 12 months the maximum custodial sentence for the offence of carrying an imitation firearm in public without reasonable excuse.
193. Subsection (1) makes the offence triable either way and sets the maximum custodial sentence on indictment as 12 months. Subsection (2) clarifies that when section 282(3) of the Criminal Justice Act 2003 comes into force in England and Wales the maximum custodial sentence on summary conviction will increase from 6 months to 12 months
Clause 34: Sale etc. of knives and other weapons
194. Subsections (1) and (2) amend section 141A(1) of the Criminal Justice Act 1988 (prohibition of sale of knives etc. to persons under sixteen) to make it an offence to sell a knife or an article with a blade or point to a person under eighteen.
195. It is an offence to manufacture, sell, hire or offer for sale or hire, lend or give to another person an offensive weapon. Subsection (4) introduces a defence for those who manufacture, sell, hire or offer for sale or hire, lend or give offensive weapons if they are doing so for the purpose of theatrical performances and rehearsals, the production of films or the production of television programmes.
Clause 35: Power to search school pupils for weapons
196. Clause 35 inserts new section 550AA into the Education Act 1996 and enables a head teacher or other member of staff in a school, with the authority of the head teacher, to search a pupil who they have reason to suspect is carrying a knife or other offensive weapon.
197. Subsection (2) provides that the power is exercisable whenever the member of staff is in lawful control of the pupil, so as to include time when the pupil is not on school premises, for example on a school trip.
198. Subsection (4) provides that a person who carries out a search may not require the pupil to remove any clothing other than outer clothing, must be of the same sex as the pupil, and must be in the presence of another person aged 18 or over who is of the same sex as the pupil.
199. Subsection (6) provides that the member of staff can seize and retain any articles found. Subsection (7) provides that the member of staff may use reasonable force if necessary in searching the pupil or to seize the weapon.
Part 3: Miscellaneous
Clause 37: Football-related disorder
200. Clause 37(1) repeals section 5(2) of the Football (Disorder) Act 2000. This section places a time limit on the provisions relating to:
201. Clause 37(2) introduces Schedule 1 which contains amendments to the provisions of the Football Spectators Act 1989 relating to the administration of football banning orders.
202. Part 1 of Schedule 1 amends the Football Spectators Act 1989.
203. Paragraph 2(1) inserts new subsections (4BA) and (4BB) into section 14A of the Act. These enable the court to remand the offender when proceedings for an order under section 14A are adjourned, and to impose bail conditions preventing the individual from leaving England and Wales before his appearance before the court, and requiring him to surrender his passport. Paragraph 2(3) inserts new subsections (5) and (6) into section 14B of the Act which provide for the same in relation to an adjourned section 14B hearing.
204. Paragraph 3(1) inserts three new subsections into section 14A of the Act which allow the prosecution to appeal against a failure by the court to impose a banning order on an individual convicted of a relevant offence. Paragraph 3(2) inserts new subsection (1A) into section 14D, providing a right of appeal for the applicant against the dismissal by a magistrates' court of an application for a banning order under section 14B. The appeal lies to the Crown Court.
205. Paragraph 4 extends the scope for chief officers of police to apply for a section 14B football banning order by removing the limitation as to area of residency of the subject.
206. Paragraph 5 amends section 14E of the Act and requires the subject of a football banning order to notify the enforcing authority of specified changes to his personal circumstances.
207. Paragraph 6 amends section 14F to extend the minimum and maximum periods of a football banning order made on complaint (section 14B) from between 2 and 3 years to between 3 and 5 years.
208. Paragraph 7 amends section 19 of the Act and requires the subject of a banning order to notify the enforcing authority and police of any temporary residence during a control period.
209. Paragraph 8 amends section 25 to provide that a notice or other document served on a subject of a banning order is deemed to be received by him unless proved otherwise.
210. Part 2 of Schedule makes various amendments which are consequential on those made to the Football Spectators Act 1989 by Part 1.
211. Clause 37(3) repeals sections 2 to 7 of the Football Spectators Act 1989 which, though never brought into force, made provision for the introduction of a national membership scheme restricting attendance at regulated football matches.
Clause 38: Forfeiture and detention of vehicles etc.
212. Clause 38 introduces Schedule 2 to the Bill which amends the Sexual Offences Act 2003 ("the 2003 Act") by inserting new sections 60A, 60B and 60C. Section 60A enables the court, when a person is convicted on indictment of an offence under sections 57 to 59 of the 2003 Act (trafficking into, within and out of the UK for sexual exploitation), to order the forfeiture of a vehicle, ship or aircraft used or intended to be used in connection with the offence of which the person is convicted. Subsection (2) of section 60A lists the circumstances that would allow the forfeiture of a vehicle; subsections (3) to (7) do likewise for a ship or aircraft. Subsection (8) allows a person who claims to have an interest in a vehicle, ship or aircraft, and who makes an application to the court, to make representations on the question of forfeiture before the court may make an order for its forfeiture.
213. Section 60B enables a constable or immigration officer not below the rank of chief immigration officer to detain a vehicle, ship or aircraft of a person arrested for an offence under sections 57 to 59 if it is one which the constable or officer concerned has reasonable grounds for believing could, on conviction of the arrested person for the offence for which he was arrested, be the subject of an order for forfeiture made under section 60A. Subsection (1) explains that detention is permitted until a decision is taken whether or not to charge the arrested person, until the arrested person is acquitted, the charge against him dismissed or the proceedings discontinued, or, where the person is subsequently convicted, until the court makes a decision on forfeiture.
214. Subsection (3) lists the circumstances in which a person other than the arrested person may apply to the court for the release of that vehicle, ship or aircraft. Subsection (4) provides that on such an application the court may release the vehicle, ship or aircraft subject to satisfactory security or surety and on condition that it is made available to the court if the arrested person is convicted and if an order under section 60A is made.
215. Section 60C provides an interpretation for some of the terms used in sections 60A and 60B.
216. The effect of paragraph 3 of Schedule 2, read with clause 45(6), is that sections 60A to 60C of the 2003 Act extend to Northern Ireland. Sections 57 to 59 of that Act already extend to Northern Ireland.
Clause 39: Amendment of s.82 of the Sexual Offences Act 2003
217. Clause 39 covers persons aged 18 or over who are convicted of a serious offence and, in the opinion of the court, remain a significant risk to members of the public of serious harm from future offences. Those who are punished by a sentence of imprisonment for public protection, as provided for by section 225 of the Criminal Justice Act 2003, will be required to notify the police of certain personal details for an indefinite period. The notification requirement will therefore apply for the rest of the offender's life.
Clause 40: Parenting orders
218. This clause amends the Crime and Disorder Act 1998 ("the 1998 Act") to take account of the Sexual Offences Act 2003. Currently section 8 of the 1998 Act provides for a court to make a parenting order in the same proceedings in which it makes a sex offender order in respect of a child or young person. The Sexual Offences Act 2003 repealed the Sex Offender Order and replaced it with the Sexual Offences Prevention Order ("SOPO"). Subsection 2(a) amends section 8 of the 1998 Act by replacing the reference to a Sex Offender Order with a reference to a SOPO, thus allowing courts to make a parenting order in the same proceedings in which it makes a SOPO against a child or young person, provided it would be desirable in preventing a repetition of the kind of behaviour that led to the SOPO being made. Subsection 2(b) provides that the SOPO takes the definition contained in section 104 of the Sexual Offences Act 2003. Subsection (3) removes the redundant definition of the Sex Offender Order from the 1998 Act. Subsection (4) provides that parenting orders will be available in proceedings in which a SOPO is made before as well as after this Act is passed.
Clause 41: Committal of young persons of unruly character
219. This clause amends section 23(1)(a) of the Children and Young Persons Act 1969 so that the references in it to committing for trial are expanded to include sending for trial. Although at present most cases involving juveniles that go to the Crown Court for trial are committed there, some are sent under section 51 of the Crime and Disorder Act 1998; and when section 41 of and Schedule 3 to the Criminal Justice Act 2003 are brought into effect, sending will become the only route.
Clause 42: Offering or agreeing to re-programme mobile telephone
220. This clause amends the Mobile Telephones (Re-programming) Act 2002 to add to the circumstances in which an offence can be committed under section 1 of that Act. Under that section it is an offence to change the unique International Mobile Equipment Identity (IMEI) number which identifies a mobile telephone handset. Under this clause a person will commit an offence if he offers or agrees to change or interfere with an IMEI number or other unique device identifier, or if he offers or agrees to arrange for another person to do so. Commission of the offence is not dependent on re-programming actually taking place. The clause also has the effect that it will be possible to bring criminal proceedings for the offence even if the identity of the person (if any) who actually carries out the re-programming is unknown.
221. The offence is triable either way. The offence is punishable on conviction on indictment by up to 5 years' imprisonment or a fine or both. The offence is punishable on summary conviction by up to 6 months' imprisonment or a fine not exceeding the statutory maximum (currently £5,000) or both.
222. It will not, however, be an offence for the manufacturer of a mobile telephone, or his authorised agent, to offer or agree to re-programme it, or to arrange for someone else to do so.
Part 4: General
Clause 43: Expenses
223. This clause authorises additional expenditure incurred by the Secretary of State as a result of the provisions of the Bill and increases in expenditure under existing Acts.
Clause 44: Repeals
224. Repeals can be found in Schedule 3 of the Bill.
Clause 45: Short title, commencement and extent
225. Subsection (1) sets out the short title of the Bill. Subsections (2) and (3) provide for commencement. Subsections (4) to (7) set out the extent of the Bill. Clause 42 on mobile telephones extends to the United Kingdom. The provisions on firearms extend to Great Britain only. The provisions relating to powers of forfeiture and detention of vehicles under the Sexual Offences Act 2003 extend to England and Wales and Northern Ireland only, as does the amendment to s.82 of that Act. The other provisions of the Act extend to England and Wales only.
FINANCIAL EFFECTS OF THE BILL
226. A number of the measures within the Bill are likely to incur modest costs for the courts and the Legal Aid fund. There will also be some costs to the police and local authorities.
227. The financial implications of the Bill for the public sector are covered in more detail within the individual Regulatory Impact Assessments ('RIA's). Financial implications for business are also discussed within these documents. An overarching RIA is available on the Home Office website at http://www.homeoffice.gov.uk/
EFFECTS OF THE BILL ON PUBLIC SECTOR MANPOWER
228. The measures within the Bill will generally draw upon existing resources. The individual impact of each provision is explored in more detail within the individual RIAs.
SUMMARY OF THE REGULATORY IMPACT ASSESSMENT
229. 15 RIAs have been produced for this Bill either on grounds of cost to the private sector, significant cost to the public sector or where the proposal is likely to attract high levels of political or media interest.
230. RIAs have been prepared for the following provisions in this Bill:
EUROPEAN CONVENTION ON HUMAN RIGHTS
231. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Home Secretary (the Rt. Hon. Charles Clarke MP) has made the following statement:
Chapter 1 of Part 1 - Drinking Banning Orders
232. Clauses 1 to 11 introduce a new type of civil order, a Drinking Banning Order. This will be available when the court is satisfied that an individual has engaged in criminal or disorderly conduct while under the influence of alcohol, and that an order is necessary to protect relevant persons or property from further such conduct by the individual. An order, which can have effect for between two months and two years, can contain any prohibition which is necessary for the purpose of protecting other persons from the conduct which led to the making of the order, including a prohibition on the subject entering licensed premises. Breach of an order, and of an interim order, is to be a criminal offence.
233. Clauses 5(9) and 10(8) reverse the presumption that the proceedings when conducted in the youth court will be subject to automatic reporting restrictions.
234. These provisions clearly engage Article 8 (right to respect for private and family life), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association) of the Convention. Each of these rights is qualified: interference with these rights can be justified in the interests of public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others. The behaviour of some individuals when under the influence of alcohol can lead to crime and disorder, and can interfere with the rights and freedoms of others to lead their lives in safety. Accordingly, the restriction on the rights protected by these Articles is in accordance with the law and is designed to meet a legitimate objective, and is considered to be a proportionate response.
235. A decision as to whether or not to make a Drinking Banning Order, and as to its contents, will be at the discretion of the court, which as a public authority is required to act in a way compatible with the Convention rights. Similarly, although reporting restrictions will not apply automatically to orders made in the youth courts, it will be open to the court to impose such restrictions in appropriate cases and to decide not to impose them in a case where any interference this entails with the individual's rights under Article 8 is justified in the interests of the prevention of disorder or crime.
236. The new civil order is compatible with Article 6(1). The order has been designed along the same lines as ASBOs. ASBOs have been subject to judicial consideration. The House of Lords in the case of R (McCann and others) v Crown Court at Manchester  3 WLR 1313 held that they are civil orders compatible with Article 6(1). The Court of Appeal has held that ex parte interim orders are compatible with Article 6, in the case of R (M) Secretary of State for Constitutional Affairs & Lord Chancellor, Leeds Magistrates' Court and Leeds City Council  EWCA (Civ) 312.
Chapter 2 of Part 1 - Alcohol Disorder Zones
237. Clauses 12 to 17 introduce alcohol disorder zones ("ADZs"). Where a local authority, with the agreement of the police, designates an area as an ADZ, it will be able to charge licensed premises and use the funds generated to offset expenditure associated with the problems caused by the sale or supply of alcohol in that area.
238. These provisions engage Article 1 of Protocol 1 which guarantees the peaceful enjoyment of property, but constitute an interference with, or a control on the use of, property rights rather than any deprivation of property rights.
239. The provisions are aimed at the prevention of crime and disorder, the protection of the public and the rights of neighbours. The provisions ensure that local authorities and the police have an effective way of ensuring the premises supplying alcohol contribute to the resolution of problems that are not directly attributable to particular premises but are associated with public spaces around premises, particularly where there is a high density of premises supplying alcohol.
240. The provisions are proportionate to these legitimate aims and so are compatible with Article 1 of Protocol 1. Those affected by the charges have an opportunity to make representations, and to take clearly specified preventative actions, before an area is designated as an ADZ and could challenge a designation by way of judicial review proceedings. Regulations dealing with the charges will set out rates of charging which will be banded to reflect the differing costs associated with differing areas. The regulations dealing with charging can provide for discounts to enable the effects of the charging to be mitigated or extinguished in appropriate circumstances. In addition, clause 12(7) contains a mechanism for exempting some premises if their principal business is not the supply or sale of alcohol and that that is not a main reason for people to visit the premises. In addition the Bill contains a power to make regulations to allow premises to appeal against the charge imposed on them.
Chapter 3 of Part 1 - Other provisions on alcohol-related violence and disorder
241. Clauses 18 and 19 confer a power on the police to apply for an expedited review of a premises licence where the premises are associated with serious crime or disorder.
242. These provisions engage Article 1 of Protocol 1 which guarantees the peaceful enjoyment of property, but constitute an interference with, or a control on the use of, property rights rather than any deprivation of property rights.
243. The provisions are aimed at the prevention of crime and disorder, the protection of the public and the rights of neighbours. The provisions are necessary to ensure that the Licensing Act 2003 ("the 2003 Act") contains a comprehensive regime for reviewing licences. The provisions are proportionate to the legitimate aims and so are compatible with Article 1 of Protocol 1.
244. To the extent that the provisions engage Article 6, which guarantees a fair and public hearing before an impartial tribunal when a person's civil rights are being determined, they are compatible with that article. It is of note that a holder of a premises licence will have the opportunity of challenging any interim step taken in relation to his licence by way of judicial review.
Persistently selling alcohol to children
245. Clauses 20 and 21 insert into the 2003 Act a new offence of persistently selling alcohol to children and an associated power for the police to close premises which persistently sell alcohol to children. A responsible person will be guilty of an offence if alcohol is unlawfully sold to persons aged under 18 on three separate occasions within a period of three consecutive months at the same premises. "A responsible person" is a holder of the premises licence or a premises user in respect of a temporary event notice. The same sale may not be counted in respect of different offences. Where a premises licence holder is convicted of this offence the court may order that the premises licence, so far as it relates to the sale of alcohol, is suspended for up to 3 months.
246. Clause 21 inserts into the 2003 Act a power for a police officer of the rank of superintendent or above or an inspector of weights and measures to give a closure notice applying to any premises if he has reasonable grounds for believing that the offence of persistently selling alcohol to children has been committed by a holder of the premises licence in respect of those premises. A closure notice will propose the prohibition on the sale of alcohol on the premises for up to 48 hours in return for the discharge of all criminal liability in respect of the alleged offence. Only one closure notice may be given in respect of offences relating to the same sale and a notice may not be given in respect of an offence for which a prosecution has already been brought.
247. If the closure notice takes effect, the premises licence for the premises concerned will, so far as it relates to the sale by retail of alcohol, be suspended for the specified period.
248. These provisions constitute an interference with rights under Article 1 of Protocol 1 but are a proportionate response to the legitimate aim of combating the sale of alcohol to children which is in the general interest. Further, the provisions are compatible with Article 6. Any person who is charged with an offence will have the right to trial by a magistrate's court, and it will be for the prosecution to establish every element of the offence.
Directions to leave a locality
249. Clause 22 contains a new power for police constables in uniform to give written directions to individuals requiring them to leave an area and not return for a period up to 48 hours. The direction can be given only if the presence of the person in the locality is likely to cause or to contribute to the occurrence or continuance in that locality of alcohol-related crime or disorder. A direction may not prevent the individual from having access to his home, his place of work, education or training, any place where he receives medical treatment, or from any place which he is required to attend.
250. Breach of a direction is a criminal offence, punishable on summary conviction by a fine not exceeding level 4 on the standard scale.
251. An order preventing an individual from entering a particular area does not constitute an interference with Article 5(1) of the Convention. Article 5 would be engaged if the person were arrested for failure to comply with a direction, but arrest in those circumstances would be in accordance with the procedure described by law, and therefore in accordance with Article 5(1)(c).
252. The interference with Article 8 (right to respect for private and family life), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association) is considered to be justified, as interference with these rights can be justified in the interests of public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others. The behaviour of some individuals when under the influence of alcohol can lead to problems of crime and disorder, and can interfere with the rights and freedoms of others to lead their lives in safety. This new power will enable the police to direct individuals away from an area when their presence is likely to lead to crime or disorder. In this context, Article 17 (prohibition of the abuse of rights) is also relevant as it prevents individuals from asserting their rights in a way which results in the destruction of others' Convention rights, or their limitation to a greater extent than provided for in the Convention.
253. The availability of a direction requiring an individual not to return to an area for 48 hours will make it possible to prevent that individual from returning to the area for a whole weekend or for the remainder of a weekend, thus making an impact on that individual's life and acting as an impetus for his behaviour to change. In the context of the type of behaviour the provision is designed to address, and the problem of alcohol-fuelled violence, with the attendant high costs and fear caused to others, 48 hours is considered to be a proportionate length of time.
254. In view of the limited circumstances in which an order can be given, the fact that a constable has a discretion as to whether to give a direction, the restrictions on the contents of an order set out above and the possibility of an order being varied, it is considered that any interference with an individual's rights under Article 8 is justified.
|© Parliamentary copyright 2005||Prepared: 15 June 2005|